Flirting with free speech

There’s an interesting wrinkle in the debate over free speech, which has to do with the issue of truth. If I say that Stephen Harper is the worst Prime Minister we’ve ever had, that falls under the category of political criticism and opinion, which is protected speech. However, if I say that Stephen Harper raped a 12 year-old girl in 1997, that falls under the auspices of defamation and is punishable under law (where I would have to produce some evidence or face a legal repercussion). Both of these things are reasonable statutes – while we should be allowed to criticize our political leaders (and each other), it would certainly be harmful to society as a whole if people were allowed to level damaging accusations at each other without restraint.

There is, however, a large middle ground where the line between these two things blurs. If I say, for example, that Stephen Harper seems to me like a guy who would rape a 12 year-old child, that’s still my opinion, but it’s definitely defamatory. What if someone tells me that they heard that Stephen Harper did something like that, and I repeat their lie based on faulty information? Is that my fault? What if I am a prominent public figure? Does my position as an opinion leader impart on me some responsibility to check into the factuality of claims that I make before I repeat them?

What about if instead of being a singular opinion leader, I am a news organization? Do I have a duty, both to the public and to the rule of law, to ensure that the things that I report are based in fact? The CRTC seems to think so:

The CRTC has withdrawn a controversial proposal that would have given TV and radio stations more leeway to broadcast false or misleading news. Indeed, the broadcast regulator now says it never wanted the regulatory change in the first place and was only responding to orders from a parliamentary committee. The committee last week quietly withdrew its request for regulatory amendments in the face of a public backlash.

The CRTC has been in the news quite a bit recently for its approach to telecommunications, the Fox News North issue, and now once again for its withdrawal of its own proposal over false news.

There are two issues to consider with this move. First, it is notoriously difficult to establish a standard for “truth” outside the realm of science. If we look at what is happening in Libya right now, it is both a populist uprising against a brutal dictator, and a band of anti-government rebels using unlawful force against the legitimate ruler of the country. Both of those completely contradictory claims are completely true, depending on the editorial position one takes. How could one determine which of these claims, if made from a media outlet, would be considered “false or misleading”? Are the Democrats in Wisconsin bravely refusing to capitulate to an over-reaching and clearly corrupt governor, or are they fleeing the legitimate government and abdicating the legislative role they vowed to uphold? Again, these are both completely true claims, and if station A adheres to the first, while station B trumpets the second, which one is lying? Both? Neither?

The second issue to keep in mind is that, thus far, this has never been an issue in Canada. The CRTC has never had to prosecute or fine a television or radio station for broadcasting false or misleading news. There’s a great diversity of opinion among the various outlets, save for the fact that we don’t have an outlet that specifically caters to the bizarro-nut right wing (we also don’t have one that caters specifically to the bizarro-nut left wing, if that helps). It’s a sort of non-issue that, if the CRTC is to be believed, was raised about 10 years ago (before the days of the Harper government) and was quietly shelved for most of that time. Given that there’s never been a challenge to the ruling, it’s hard to claim that this is an unreasonable restriction of free speech.

These two issues aside, there is still an underlying conflict at the centre of free speech when it comes to truth. Since truth is always a shifting target outside of science, banning false or misleading news is a tricky issue. By any objective standard of truth that we could agree on as a society, religious statements are all false and misleading, as are ghost stories and UFO sightings. Clearly we are not comfortable banning those statements. What do we do when someone does make a blatantly false claim in a news outlet, given that we have no precedent? While we can trumpet “extraordinary claims require extraordinary evidence” until the cows come home, can we turn that into a general rule for the state to follow? Or must we let the liars continue to lie, with our only recourse being to counter their false speech with true speech?